Tuesday, 28 October 2014

Saskatoon Transit: The Final(?) Chapter (plus some Ghomeshi)

It feels a bit odd to be writing this post (probably the last one) about the Saskatoon Transit situation, because, first, this blog was started, at least in part, because of the lockout; second, because it all seems a distant memory now that Transit is running again; and third, because of the bizarre news of Jian Ghomeshi's dismissal from the CBC over "sex allegations" (to use the Toronto Star's wording), which I think we can all agree is a much more lurid story than the minutiae of Saskatchewan labour law. Regardless, I'm going to ignore the Ghomeshi story as others have already written about the legal aspects of that case. For example:

Professor David Doorey's comments on the labour and employment law aspects of Ghomeshi's firing are on his blog, The Law of Work, here. In particular: could the CBC fire Ghomeshi for off-duty conduct? And can Ghomeshi bring an action against his former employer in tort, or is he limited to a grievance under his collective agreement?

Professor Brenda Cossman, meanwhile, writes about BDSM and the law of consent in the criminal law context (under Canadian law you can't consent to bodily harm, for a start) for the Globe & Mail, here.

Finally Howard Levitt, an employer-side labour lawyer, characterizes Ghomeshi's lawsuit against the CBC as "hopeless", here. Of course, Levitt being Levitt, he takes the opportunity to go after unions in general, because that's what he does. "How's the weather today, Howard?" "Terrible, and you know who's to blame? Unions." So while Levitt's basic legal analysis may have some merit, take his comments in general with a huge grain of salt. And by "salt" I mean "bias."

Anyway. On to The Saskatchewan Employment Act, which has nothing to do with BDSM, at least not overtly. Reading my analysis of this particular specific point may qualify as masochism on your part, mind.

So, here's a thumbnail sketch of the situation:

The City locked out its transit workers while an outstanding, unrelated, Unfair Labour Practice application was still pending before the Labour Relations Board.

The Board ultimately ruled that the lockout was illegal, because the SEA makes it illegal for an employer to lock out, or for a union to strike, when there is "any application" pending before the Board.

The City argued that the application had nothing to do with collective bargaining or the lockout, and that any application should be read in a more narrow sense than the plain language would suggest.

The Board, in my view rightly, did not accept the City's argument and enforced the law as it is plainly written.

Meanwhile, as I've mentioned before, the Saskatoon Star-Phoenix has argued that the SEA needs to be changed in this regard. Which is ironic, given that the Saskatchewan government implemented numerous restrictions on strikes and lockouts in 2013 - such as a requirement to bargain to an impasse (which employers already had, but unions didn't), to respect a 14-day "cooling off period" prior to striking or locking out, and to attend mandatory mediation/conciliation - and the Star-Phoenix seemed to think the new legislation was just fine.

I don't mean to single out the Star-Phoenix here, but that's my big issue with the outcry - such as it is - about these provisions. Restrictions on strikes and lockouts, apparently, are fine. But one employer makes one bad call, and all of a sudden the legislation must be changed.

Employers argued in 1993 that these restrictions should be removed entirely. CUPE in 2012 suggested the restrictions could be tweaked (both mentioned here). On the other hand, Larry Hubich, President of the Saskatchewan Federation of Labour, has commented that he believes the statutory restrictions should not be changed.

Note, again, that we're dealing with limitations on both employers (6-62(1)(l)) and unions (6-63(2)(b)) in the SEA.

So let's take a look at why these statutory limitations are there.

These provisions have been around since 1944, when The Trade Union Act, 1944 was proclaimed. At the time - and up until 1983 - Saskatchewan's labour legislation didn't prohibit strikes during the term of a collective agreement. The law has since changed in that regard. Now every piece of labour relations legislation in the country has the so-called "peace obligation", which set out that there is to be no strikes or lockouts while a collective agreement is in force. But, again, our labour laws have been revised in 1983, 1993, 2008, and 2012, and no change was made to these statutory limitations on strikes and lockouts.

Because a union could strike, and an employer could lock out, at any time, it was important to prevent either side from using economic pressure to subvert Board processes - from using a strike or lockout to cause the other side to hesitate or be coerced into pursuing its rights before the Board. (RWDSU v. Westfair Foods Ltd., [1993] S.L.R.B.D. No. 32, at p. 16 (Quicklaw)).

Okay, so historically, that was the purpose of the prohibition. What about now? Strikes and lockouts are now forbidden during the term of a collective agreement.

But, once a collective agreement has expired, strikes and lockouts are back on the table. And as the Board pointed out in Re Pepsi-Cola Canada Beverages (West) Ltd., [1997] S.L.R.B.D. No. 58 at para. 13 (Quicklaw):

...In this context, ss. 11(1)(j) and 11(2)(b) [now ss. 6-62(1)(l) and 6-63(2)(b) of the SEA] of the Act can be seen to play a role in containing disputes by not allowing a dispute that has been referred to the Board to become the subject matter of industrial action, although such action otherwise may be permitted under the Act. The prohibition contained in ss. 11(1)(j) and 11(2)(b) of the Act not only prevents the parties from upping the ante in a dispute that is already before the Board, as was suggested as its purpose in the Westfair Foods Ltd. case, supra, it also prevents certain issues from causing unnecessary or protracted industrial action.

Therefore, the risk remains. Contract negotiations can take months or, sometimes, years, especially with big employers. Applications can arise out of collective bargaining (for example, allegations of failure to bargain in good faith, or an employer communicating improperly directly with its employees), or they may be unrelated, but either way may be sufficiently serious that they need to be resolved before a contract can be finalized (as in Pepsi-Cola, above). Or, there may be completely unrelated applications which are not a barrier to finalizing a contract, as was the case with Saskatoon Transit. Either way, these provisions help maintain industrial peace.

And that, I think, is why they've been kept in, rightly or wrongly. It may be that these restrictions actually favour employers, because restrictions on strikes are more cumbersome on unions than
restrictions on lockouts are on employers, and the majority of ULP
applications are brought by unions, too. Regardless, these provisions "keep the peace", so to speak, in the industrial realm.

The value of the current language is certainty. The City of Saskatoon's arguments were flawed, in my view, because they flew in the face of the plain language of a pretty well-known statutory restriction. But on the policy level, they were also flawed because all of a sudden you're asking the Board to rule on what applications are "relevant" and what aren't. With such uncertainty it'll take an LRB hearing to determine if a particular application is a bar to a strike or lockout, or not.

(Yes, it took an LRB hearing this time, but the City made a bad call. That happens. Given how public this has been, do you think anyone will make that mistake again?)

There's no question the legislation could be changed. Other jurisdictions in Canada don't have the same language in their various Acts. But I don't think the answer is just to add the words "relevant to collective bargaining" or somesuch to ss. 6-62(1)(l) and 6-63(2)(b). That's going to make things more complicated and uncertain.

Limiting strikes and lockouts to certification applications - to prevent an employer from locking out its employees just because they are trying to unionize, for instance - would be an option. The B.C. Labour Relations Code sets out:

32(1) If an application for certification is pending, a trade union or person
affected by the application must not declare or engage in a strike, an employer must
not declare a lockout, and an employer must not increase or decrease rates of pay or
alter a term or condition of employment of the employees affected by the application,
without the board's written permission.

Similar language to our prohibition, but limited to certification applications; it doesn't include Unfair Labour Practices.(Other jurisdictions have similar prohibitions regarding strikes and lockouts when there's a pending certification application, though with different language.)

That's kind of what CUPE suggested in 2012: specifically exclude most Unfair Labour Practice applications from triggering the statutory prohibition on strikes and lockouts. Other types of applications (like certification applications) would continue to be included.

At the absolute minimum, I think a prohibition on strikes and lockouts while a certification application is pending must remain within the Act, because that is one of the most vulnerable times for both workers and their unions of choice. Now, that may fall under another type of unfair labour practice - a prohibition on using intimidation or coercion to keep an employee from exercising his or her rights under the SEA (s. 6-62(1)(a)) - but this is important enough that I think specific protections are required. And "recognition strikes" - where workers had to go on strike to get employers to recognize the union - are exactly what we've tried to get away from with our labour relations model.

But what if an employer refuses to bargain in good faith with the union representing its employees? That would have been an ULP under the old Trade Union Act (s. 11(1)(c)) and continues to be so under the SEA (s. 6-62(1)(d)). A union could bring an ULP application before the Board requiring the employer to begin to bargain in good faith; and you don't necessarily want an employer to be able to lock-out its workers in retaliation for their exercising their rights under the Act.

But of course the Union is also tying its own hands in such a scenario. Now the Union has to rely upon the LRB to resolve things; it can't strike to force the employer to bargain, either. Whether this is a desirable outcome or not depends a great deal on your policy goals. Saskatchewan governments of all political stripes have seemed to feel that they like the language as is. (Rightly or wrongly.)

Retaliatory strikes or lock-outs could be dealt with by making it illegal to lock out or strike for the purpose of influencing the other side to withdraw any pending application. Again, though, there would be a new subjective element (and therefore further uncertainty) in these prohibitions. Careful legislative drafting would be needed.

But given how rarely this situations arise; given that the present language is certain, and than many of the potential changes would create uncertainty; given that the statutory prohibitions do still have some value; maybe changes aren't all that urgent at all. A bit of a tempest in a teapot; I'd suggest that the government, if it embarks upon changing the law, should keep in mind why the provisions are there in the first place, and ensure that any changes are done in such a way that meaningful collective bargaining is protected and promoted.

Now, having said all that, what'll happen if/when the Court rules on the City's judicial review application? I haven't the foggiest. Judges have disagreed with me in the past and will disagree with me into the future, I'm sure.

Were the Court to overturn the LRB decision, if nothing else, at least I'd get one more blog post out of it.